Why human rights law demands FIBA review its “no-turbans” decisions

Published 27 August 2014 | Authored by: Nikki Dryden
In this article, Nikki Dryden analyses and discusses, in the light of current international human rights law, the recent decision by the International Basketball Federation (FIBA) to require two Indian Sikh basketball players to remove their turbans prior to competing for their nation in the 2014 FIBA Asia Cup.

Facts

Just before India was to take on Japan at basketball's Asia Cup in China in July 2014, referees told two Indian male athletes, Amrit Pal Singh and Amjyot Singh, who are also practicing Sikhs, that they could not wear their turbans during play.1 The reason given: the cloth violated FIBA's rule 4.4.2, which reads, “Players shall not wear equipment (objects) that may cause injury to other players.2
 
This decision to require the Sikh players to remove their turbans (which they ultimately did) was not taken lightly by the players or officials. Both men had played in FIBA sanctioned games before with their turbans and reports of India's coach, American, Scott Flemming, debating the issue with officials the day before appeared to go in the athletes' favour.3 Officials later claimed they had agreed on different issues.
 

What does the law say?

From a legal perspective, this case highlights a contradiction between rulings that appear to discriminate against athletes from visible religious minorities and principles of international sport and human rights law, under which the right to religious freedom is explicitly protected and diversity and inclusion supposedly valued.
 
The same FIBA rule cited in stripping two Sikh players of their turbans is what keeps American Muslim basketball player, Bilqis Abdul-Qaadir away from competing outside the US in FIBA governed play, as well as other Muslim women basketball players in Switzerland, Bahrain, and the Maldives.4
In May 2013, the Maldives' women's under 18 three-on-three basketball team decided not to play in a FIBA tournament in Thailand without their headscarves.5 Despite being able to play in previous tournaments they, just like their Sikh counterparts, were told by local officials that they couldn't participate because their headscarves violated FIBA rules. According to Maldives officials the bending of the rules in previous play “depends on the officials.
 
With multiple officials ruling against Sikh men and Muslim women, we must ask whether these interpretations of the rule are actually about preventing injury or knee-jerk reactions intended to keep religion off the court?
 

FIBA’s rules

FIBA rule 4.4.2 specifies that “headgear, hair accessories and jewellery,” are not permitted, but does allow other garments that could fall into the same category as turbans or headscarves including: knee braces (if properly covered), hard material nose protectors, mouth guards, glasses (if they do not pose a danger to other players) and headbands (maximum 5 cm in width) made from cloth, pliable plastic or rubber. The sole difference seems to be that turbans and headscarves are primarily religious symbols and not medical or protective gear. But if the turban or headscarf actually performs a similar function as headband, and is interpreted as primarily a religious symbol, is that not evidence of discrimination?
 
In an article by Austin Burton on ummahsports.net6, FIBA Communications Coordinator responded to inquiries regarding Abdul-Qaadir in May 2014: “...it is worth pointing out that FIBA’s rules and regulations apply on a global scale and make no distinction between the various religions so as to ensure that none of them are being targeted specifically or discriminated against. It is also worth highlighting the fact that Article 1 of FIBA’s General Statutes calls for FIBA to maintain absolute religious neutrality. As such, all FIBA regulations must be interpreted from a purely sports-related point of view, without any religious connotation.

 

Effects on the athletes

Abdul-Qaadir was a star player at Memphis and Indiana State, excelling on and off the court, but her pro-career, and her chance to continue to be role model for Muslim girls around the world has been cut short. “As of right now I'm really in a holding pattern because of FIBA,” Abdul-Qaadir said in an article on masslive.com7. “International means everyone, and FIBA isn't inclusive because of its ban on wearing my hijab,” Abdul-Qaadir said. “FIBA says it wants to remain religiously neutral but this is discriminatory.

 

Unlike the Sikh players who decided to remove their turbans to finish the tournament most women players have decided not to play, “I have no plans to change the way I am so I can play basketball,” continued Abdul-Qaadir, “I've come so far and my religion has taken me this far. I'm not going to change.
 
Maldivian basketball officials echoed this sentiment. “This is a big problem for the game and will ruin the development of women’s basketball for a place like this, because there are still very few girl players and most wear the [headscarf].
 

International human rights charters

Article 18 of the Universal Declaration of Human Rights states: “everyone has the right to freedom of thought, conscience and religion.” Specifically, this includes the right “to manifest his religion or belief in teaching, practice, worship and observance.8 Under this law, the decision of the officials (without hard evidence, research, or even anecdotes to back up their interpretation of the regulation) means that their decision violates the basic tenants of international human rights law.
 
There are a plethora of other international treaties and declarations that protect freedom of religion.9 The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief notes “that religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed,” and furthermore that these rights are “essential to promote understanding, tolerance and respect...” and “that freedom of religion and belief should also contribute to the attainment of the goals of world peace, social justice and friendship among peoples and to the elimination of ideologies or practices of colonialism and racial discrimination.” This also happens to be exactly what international sporting federations say is their underlying purpose (see FIBA's website below).
 
Couple these international human rights charters with international sport law and there is no denying that by interpreting the no head-gear rule to include religious head-coverings, the Asian Cup officials violated international law. UNESCO's International Charter on Physical Education and Sport lists “The practice of physical education and sport is a fundamental right for all,”10 in Article 1.
 

The Olympic Charter

The Olympic Charter, the governing document for the International Olympic Committee and which claims “supreme authority over FIBA as a member of the Olympic Movement,11 says that the practice of sport is a human right and that any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement.12 Furthermore, every individual must have the "possibility of practising sport, without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.13
 

FIFA’s position

FIFA also confronted this issue and, after taking two years to study it, finally changed their rules in March 2014 to allow for head-coverings after a ban originated in 2007 around the issue of safety for athletes. In 2012, FIFA decided to study the safety concerns, which they admitted had no medical studies to support the basis of the rule i.e. that a headscarf might cause head and neck injuries.14 Two years later FIFA issued the official rule change and acknowledged: “there was no indication as to why the wearing of head covers should be prohibited.15
 
The initial decision to make the change came under fire from several French women's groups who argued that “To accept a special dress code for women athletes not only introduces discrimination among athletes but is contrary to the rules governing sport movement, setting a same dress code for all athletes without regard to origin or belief.16
 
However, Human Rights Watch researcher Judith Sunderland describes the legal issue in an article about forced veiling and forced uncovering. “Denying women the right to cover themselves is as wrong as forcing them to do so,” wrote Sunderland. “Muslim women, like all women, should have the right to dress as they choose and to make decisions about their lives and how to express their faith, identity and moral values. And they should not be forced to choose between their beliefs and their chosen profession.17
 
When FIFA finally authorized head-coverings, they specifically noted approval for both Muslim women and Sikh men. “It was decided that female players can cover their heads to play,” said FIFA. “It was decided that male players can play with head cover too.18
 

Analysis of FIBA’s decision

Without knowing any more than which FIBA rule the Sikh basketball players were violating, one can charitably assume that the decision at the recent Asian Cup was based on an officials' idea of what causes injury. Even so, such literal applications of the rules around headgear will tend to disadvantage players who are members of a visible religious minority.
 
Let's take a hypothetical to see if there really is a difference between reasonably foreseeable injury (e.g. from elbows, chins, knees) inevitable in the course of play and/or punishable if beyond accepted play, and injury unrelated to game play from a turban or a dreadlock?
 
What if FIBA told dreadlocked players to shave their heads or sit on the bench because their hair may injure another player? Dreadlocks, like headbands, turbans, or headscarves help to keep long hair out of a player's face, but they can also be religious symbols (for Rastafarians) or (sub)cultural symbols for players from Africa or of African descent. So far players have not been forced to make a choice between playing sport or wearing dreadlocks, and we can easily imagine the outrage if they were.
 
FIBA Asia notes on their website that one of their 'purposes' is promoting “Peace Through Basketball.19 It also states that “With 44 National Federations affiliated FIBA Asia is one of the largest among the five FIBA zones...The members of the FIBA Asia family bring a diversity of cultures and languages making FIBA Asia the most varied, vivid and vibrant basketball community in the world.” 20
 

Current disconnect between rhetoric and application of rules

Clearly there is a disconnect between the public rhetoric of FIBA and FIBA Asia (and it's President, Qatari Sheikh Saud Bin Ali Al-Thani) and the interpretation of rules made by their officials.
 
Although it was reported that India's coach was in last minute dialog with the officials in question, where were the athlete representatives to FIBA? FIBA has eight commissions, including a Technical and Women's' Commission. No athletes’ commission appears easy to find on their website and it is unclear if there is athlete representation on any of these commissions.
 

Lack of forums for athletes

In fact, there are very few mechanisms for athletes generally to fight for their rights, especially minutes before they are set to take to the court. As I have written previously, athletes have little say in the development of sport policy and they are rarely if ever consulted.21
 
Further, athlete commissions and committees i.e. athlete representation is “invariably paternalistic, tokenistic, fulfills purposes associated more with legitimation of National Governing Body decisions than with empowerment and involvement in decision-making processes.” They are selected, not elected and “lack the capacity to speak authoritatively on behalf of their fellow athletes and have no obligation to act in an accountable manner.22
 

FIBA’s review of the decision

FIBA officials have indicated their policy-making board will be reviewing the issue on August 27, 2014, after both the US Olympic Committee and the Indian government called for a change to the rules.23We take seriously American athletes' right to compete and believe that reasonable steps can be taken to accommodate athletes of all religious beliefs,” said the USOC in an AP report, which also quoted India's sports minister as being 'shocked and outraged,' and asked the IOC to send guidelines to Olympic sports federations.
 
FIBA's decision (and that of FIFA before them) to ban head-coverings is the imposition of a particular cultural perspective on others of different religions, not one of safety. When sports and human rights clash, the sporting world needs to look beyond their rules to the broader impact on athletes and their individual rights.
 

Final thoughts

Is sport open to true diversity or is it about secular diversity and narrow cultural ideals where minority players aren't really welcome unless they assimilate?
 
As a start, greater athlete representation in policy-making may help to prevent this kind of infringement of human rights and lead to more inclusive and diverse global sporting community.
 
We also need to decide whether sport is a place where diversity amounts merely to differences in nationality or skin tone, or whether sport is truly compatible with cultural and religious diversity and with international human rights.


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About the Author

Nikki Dryden

Nikki Dryden

Nikki is a two-time Olympic swimmer from Canada and a human-rights and immigration attorney in New York. She competed at the 1992 and 1996 Olympic Games, with a top finish of 6th place, and covered the 2004 and 2008 Olympics for SwimNews Magazine. She has a BA in International Relations from Brown University and a J.D. from Brooklyn Law School.

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